Sherry Jackson's Appeal

[DarkestBeforeDawn]

Prof

I don't know if you responding to me, but I actually agree Georgia does not have jurisdiction in federal tax cases for failing to file a federal tax return. If you read the Jackson appeal she does not make that claim either. This is simply about subject matter jurisdiction not venue in my humble opinion. I really don't even understand how this thread could get this long.

Jackson contents from what I can understand:
- USDC does not have subject matter jurisdiction within Georgia for criminal prosecution because of Art. 3
- Her question is where did the crime take place?

If the crime for example happened in the geographic area known as Atlanta, Georgia and some street address than it is her thought that would be within the domain of the State of Georgia to prosecute any crime. If the crime happened on federal land from which the State of Georgia consented to give up jurisdiction than she basically admits she is guilty. This is her argument not mine but I think it's a simple concept. Bowen is probably the closest I have seen to being on topic, whether or not she is correct I will not say. I keep an open mind.

I guess in essence if I were to summarize what she is saying I would say -- She does not believe failing to file a federal income tax return can be criminal prosecuted if the defendant is not outside of the State of Georgia.

[Prof]

Prof

I don't know if you responding to me, but I actually agree Georgia does not have jurisdiction in federal tax cases for failing to file a federal tax return.

I am, to the extent you confuse subject matter and venue.

Clause 1 is subject matter jurisdiction; clause 3 is a constitutional protection concerning the venue of criminal trials making it unconstitutional for the US to charge someone with a crime in a state where the crime was not committed.

Why do you insist on trying to make venue into subject matter jurisdiction?

Until revisions to the federal criminal code after the Kennedy assasination, a federal charge of assassination of the president of the US would have failed for lack of subject matter jurisdiction, even if the charge had been brought in Texas, because Congress had not given the federal courts such jurisdiction.

(Texas would, of course, have tried Lee Harvey Oswald.)

However, Congress has given the US District Courts jurisdiction over federal crimes like tax fraud and bankruptcy fraud. Therefore, that grant creates subject matter jurisdiction; the Constitution at clause 1, Art. III is satisfied.

Sherry wants to pretend that the federal government has no subject matter jurisdiction over crimes -- federal or otherwise -- that happen in non-federal enclaves -- let's just forget all of the nonsense about military bases and national parks and so forth. Let's just say that the only federal enclave is the District of Columbia, to make thinks simple.

Yet, federal courts try criminal cases every day in every district in the US -- as well as in the District. No one has ever successfully argued that Art. III, Clause 3 means that the federal courts have no criminal jurisdiction outside of DC (in our simple model). Why not?

Because, if you read Clause 3, the argument makes no sense. Subject-matter having been conferred by a Congressional act, venue being proper under the Constitution, Sherry goes to jail.

[ASITStands]

A trial conducted in the United States District Court for the Northern District of Georgia (Atlanta) is not a trial conducted in the State of Georgia pursuant to Article III, Sec. 2, Cl.3.

You have to travel through the State of Georgia to reach the Northern District of Georgia.

A trial conducted in the United States District Court for the Northern District of Georgia (Atlanta) is a trial conducted in a Place directed by Congress, and pursuant to Article III, Sec. 2, Cl. 3, such a Place is designated only when the Crime was not committed within any State.

The United States did not acquire subject-matter jurisdiction by bringing the trial in a Place directed by Congress if the Crime was committed within the State of Georgia.

At least, that's my reading of both the Constitution and Sherry Jackson's appeal.

[Famspear]

If a federal district court is found not to have subject-matter jurisdiction, because the Trial of all Crimes is dependent on whether the crime is committed within the boundaries of a State or not committed within said boundaries [which I believe is venue], then subject-matter jurisdiction is not acquired, and the case, and/or its outcome, must be dismissed.

No, I believe that is incorrect. First, the bolded material shows that the argument is circular: If the court is found not to have subject matter jurisdiction, then subject-matter jurisdiction is not acquired. While this is a correct statement, it's circular, and it tells us nothing useful.

Second, whether a particular crime was committed within the boundaries of a state or, alternatively on the high seas or, alternatively, on The Moon, would not determine whether a given federal district court has subject matter jurisdiction; a motion for dismissal on the ground of subject matter jurisdiction on that basis would fail. Stated another way: Assume that the crime is 26 USC 7201 (tax evasion) and that it was committed (and was alleged to have been committed in the indictment) in Germany. Assume that the indictment was brought in the U.S. District Court in St. Louis, Missouri. The criminal defendant moves for dismissal based on lack of subject matter jurisdiction on the basis that the crime was committed in Germany but the federal court is in Missouri.

This is not my area of expertise, and I am shooting from the hip, but I believe the defendant would lose. The federal district court in St. Louis does indeed have subject matter jurisdiction over a 26 USC 7201 committed in Germany but prosecuted in St. Louis, as does every other federal district court! Location of the crime does not affect subject matter jurisdiction. Now, if the defendant loses on that subject matter jurisdiction motion, but immediately follows up with motion based on venue, he might get the trial moved to the proper venue.

Here's a question I have. Here are the facts.

Assume that there is a venue problem (say, the Germany-St. Louis thing), and suppose that neither the parties nor the court notice the venue problem. The defendant is convicted, and appeals. While the defendant is preparing his appeal brief, he finally recognizes the venue problem. On appeal, he raises the venue issue for the very first time. That's the only issue he raises. What do you think the appeals court will rule?

Now, change the facts. Suppose that the case was not a federal tax evasion case, or any kind of federal case at all, but it's still in the federal district court in St. Louis. Suppose that the trial court lacked subject matter jurisdiction -- never mind the reason. Defendant is convicted, and now the case is on appeal. The defendant realizes the problem. On appeal, he raises the issue for the very first time. That's the only issue he raises. What do you think the appeals court will rule?

[Dr. Caligari]

If what you said were true than the Bowen case would not exist as is, the federal government could charge for murder anywhere in the State of Georgia without consent.

No, because, under Article I, Congress was not given the power to punish murder except in areas ceded by States [see Art. I, sec. 8, cl. 17]. Congress was given the power to punish tax evasion. (Not as clearly as it was given the power to punish counterfeiting, but if you combine the power to impose taxes [Art. I, sec. 8, cl. 1] with the power to do anything "necessary and proper" to carry out the taxing power [Art. I, sec. 8, cl. 18], Congress can punish violations of the tax laws.)

[Dr. Caligari]

A trial conducted in the United States District Court for the Northern District of Georgia (Atlanta) is not a trial conducted in the State of Georgia pursuant to Article III, Sec. 2, Cl.3.

Of course it is. The Northern District of Georgia is within the State of Georgia.

[DarkestBeforeDawn]

Prof

I know what you are saying, I am not confusing subject matter with venue though in this case. This is a subject matter jurisdiction.

Venue would have to do with the proper USDC court if subject matter jurisdiction existed. It is Jackson's argument that subject matter jurisdiction does not exist so venue is not even material. At least my take on it.

It is Jackson's argument that districts don't matter unless the act was committed outside of the State of Georgia now this could include any federal land or property that the US was given jurisdiction for from Georgia. See Bowen.

Venue would than deal with the proper court (district court) to determine the proper setting.

[DarkestBeforeDawn]

A trial conducted in the United States District Court for the Northern District of Georgia (Atlanta) is not a trial conducted in the State of Georgia pursuant to Article III, Sec. 2, Cl.3.

Of course it is. The Northern District of Georgia is within the State of Georgia.

I believe it is Jackson's argument that the Northern District of Georgia includes all federal property in the counties specified for criminal prosecution (where consent from the Georgia was given) and USDC would have civil jurisdiction over some cases in this area as well per the Constitution.

So, you go hurt an individual say in Chattanooga National Park the US would have jurisdiction to criminal prosecute in the corresponding District Court.

Just my take. Seems simple to me. I haven't made any final judgment, it's interesting to watch. I am in no way saying Jackson is right at the moment. I think the Bowen case is very interesting and does shed some light on the matter but we will see. Either way DOJ better write something -- to me they simply passed.

[Prof]

Prof

I know what you are saying, I am not confusing subject matter with venue though in this case. This is a subject matter jurisdiction.

Venue would have to do with the proper USDC court if subject matter jurisdiction existed. It is Jackson's argument that subject matter jurisdiction does not exist so venue is not even material. At least my take on it.

It is Jackson's argument that districts don't matter unless the act was committed outside of the State of Georgia now this could include any federal land or property that the US was given jurisdiction for from Georgia. See Bowen.

Venue would than deal with the proper court (district court) to determine the proper setting.

And venue, the proper district court of the US, is what Art. III, Clause 3 sets out as a constitutional protection in criminal cases.

This is still a silly argument. I am sitting in Texas, in San Antonio; I also am sitting in in the San Antonio Division of the United States District Court for the Western District of Texas. Both are in the United States. Both are located on the North American Continent. This is all in the Western Hemisphere on a planet we call Earth in a our Solar System in a galaxy called the Milky Way in the Local Group of galaxies.

Your argument makes about as much sense as saying that I do not reside on Earth because I have to go thru San Antonio to get there or that I do not reside in the Solar System because I have to go thru the Milky Way to get there.

[wserra]

On appeal, he raises the venue issue for the very first time.

Where a defendant has made a Rule 29 (directed verdict of acquittal) motion at trial - as is universally done - and not specified venue as a basis, and has not otherwise objected to venue, it is waived. United States v. Menendez, 612 F.2d 51 (2d Cir. 1979). Otherwise, it likely is not.

On appeal, he raises the issue [SMJ] for the very first time.

Objections to SMJ are non-waivable, since they go to the power of a court to hear a case. United States v. Cotton, 535 U.S. 625 (2002).

[wserra]

Either way DOJ better write something -- to me they simply passed.

"Simply passing" - assuming that's what DOJ did - on this issue is enough.

[Famspear]

A trial conducted in the United States District Court for the Northern District of Georgia (Atlanta) is not a trial conducted in the State of Georgia pursuant to Article III, Sec. 2, Cl.3.

What?

You have to travel through the State of Georgia to reach the Northern District of Georgia.

And, your point is? What?

A trial conducted in the United States District Court for the Northern District of Georgia (Atlanta) is a trial conducted in a Place directed by Congress, and pursuant to Article III, Sec. 2, Cl. 3, such a Place is designated only when the Crime was not committed within any State.

No, that is incorrect. Go back and read Article III, section 2, clause 3.

The United States did not acquire subject-matter jurisdiction by bringing the trial in a Place directed by Congress if the Crime was committed within the State of Georgia

That's correct, but beside the point. The presence or absence of subject matter jurisdiction does not depend on whether the trial is brought "in a Place directed by Congress" or not. The presence or absence of subject matter jurisdiction for the federal district courts does not generally depend on the location of the trial, or the location of the crime. Every federal district court has the subject matter jurisdiction to hear and decide (for example) a federal tax evasion case, regardless of the location of the court and regardless of where the crime was committed.

[DarkestBeforeDawn]

Prof

The problem you are having I think is you think District means that it is in the State. The District only COVERS counties in the State per venue.

District courts cover certain geographic areas within it's domain but it doesn't necessarily have subject matter jurisdiction in that area but parts of the area they very well could have jurisdiction. I mean if you were correct Congress could pass a law for 20 mph speed limit in every State or selected States and they could criminally prosecute you in District Court.

I would suggest reading Bowen. This is not my argument but it starting to sound like it so I will give a rest. I am not on anyone's side.

[Famspear]

On appeal, he raises the venue issue for the very first time.

Where a defendant has made a Rule 29 (directed verdict of acquittal) motion at trial - as is universally done - and not specified venue as a basis, and has not otherwise objected to venue, it is waived. United States v. Menendez, 612 F.2d 51 (2d Cir. 1979). Otherwise, it likely is not.

On appeal, he raises the issue [SMJ] for the very first time.

Objections to SMJ are non-waivable, since they go to the power of a court to hear a case. United States v. Cotton, 535 U.S. 625 (2002).

Thus, even assuming that the crime was committed in, say, Virginia and the case was prosecuted in Idaho (so that venue is lacking), and you raise that venue issue for the first time on appeal - you still lose. You still lose even though the Constitution itself requires that the "trial of all crimes...shall be held in the state where the crime was committed."

Contrast that to lack of subject matter jurisdiction. Here, where you as a criminal defendant raise the issue for the first time on appeal, you win.

OK, this may be a bit off topic, but I bring it up because of the confusion in this thread between venue and subject matter jurisdiction. The Moral of the Story is: There are good reasons not to confuse the two.

[wserra]

You still lose even though the Constitution itself requires that the "trial of all crimes...shall be held in the state where the crime was committed."

Umm . . . yeah, I know.

(Being silly. I need a vacation.)

[Famspear]

Prof

The problem you are having I think is you think District means that it is in the State. The District only COVERS counties in the State per venue.

District courts cover certain geographic areas within it's domain but it doesn't necessarily have subject matter jurisdiction in that area but parts of the area they very well could have jurisdiction. I mean if you were correct Congress could pass a law for 20 mph speed limit in every State or selected States and they could criminally prosecute you in District Court.

I would suggest reading Bowen. This is not my argument but it starting to sound like it so I will give a rest. I am not on anyone's side.

No, the Southern District of Texas is located within the State of Texas. This is not rocket science.

Federal district courts do "cover" certain geographic areas. The subject matter jurisdiction of a given federal district court is not generally dependent on or based on geography. Again, you are confusing venue and subject matter jurisdiction. The U.S. district court for the Southern District of Texas has subject matter jurisdiction to hear and decide a federal tax evasion where the crime was committed in New Hampshire, in Virginia, in Idaho, etc., etc. That means that if you are alleged to have committed tax evasion in Idaho and you have never even set foot in Texas, and you object to lack of subject matter jurisdiction where the indictment is brought in the U.S. District Court for the Southern District of Texas in Houston, you will lose on that argument. Period. You are quite wrong.

From a constitutional standpoint, subject matter jurisdiction for a given federal district court is not generally based on or limited by location of the court or the location of the crime. And unless the jurisdictional statute imposes some sort of geographical limitation, you're simply out of luck if you argue lack of subject matter jurisdiction. You lose.

[Demosthenes]

Either way DOJ better write something -- to me they simply passed.

Passing is exactly what the DOJ should do.

It isn't the DOJ's job to educate the defendant or address her erroneous assumptions to her satisfaction. It's the DOJ's job to point issues/answers out for the judge to consider. The motion isn't written for the defendant or her fans; it's written for the judge.

[Prof]

You still lose even though the Constitution itself requires that the "trial of all crimes...shall be held in the state where the crime was committed."

Umm . . . yeah, I know.

(Being silly. I need a vacation.)

Wes, you might also point out that there are other Constitutional protections that a criminal defendant can waive.

[LPC]

Time to put this baby to rest.

[grixit]

How can the United States bring charges against an illegal immigrant when it has no address?

How can it allege a crime occurred within a federal district without an address in a State?

Address is irrelevant, it's a question of geographic location. And if it happened in the United States, then it happened in a federal district. And no matter how much, you or Jackson kicks and screams about not agreeing on the location, guess what? It's not for you to say.